The question comes up eventually. Whether I am doing a talk specifically for LGBT parents or at a meet-up of same-sex families like mine, a mother will ask me: Do I really need to do a second-parent adoption? Still?
The “still” is because of Obergefell, last summer’s Supreme Court ruling making marriage quality the law of the land.
The short answer is that the advice of all the leading LGBT family law experts, and my advice, is families should still secure parental rights of the non-biological parent by completing the second-parent adoption. This answer surprises — and frankly, pains — many families, and I understand their frustration.
But Obergefell only addressed marriage rights — the relationship between the adults in a family. It did not specifically address the legal relationship of each of the parents to the children the family is raising. Those are two different buckets of rights and need to be analyzed separately.
WHY SECOND-PARENT ADOPTIONS, STILL?
There are two basic reasons for this advice. First, we have seen cases in New York that go in different directions about whether the non-biological mom is entitled to the presumption of legal parentage flowing from the marriage that straight couples enjoy. The intermediate court of appeals that covers Long Island and the boroughs of Brooklyn, Queens and the Bronx has held that the presumption categorically does not apply. Other courts, however, have extended the presumption if the family has used an anonymous sperm donor to conceive the child, finding that the non-biological parent is a legal parent by virtue of the marriage. The Court of Appeals will have to eventually resolve this conflict, but, for the time being, I cannot offer couples any assurances that they can rely on just their marriage to protect the non-biological mom.
The other reason is that even if you ever move out of New York, the laws of parentage may be different. In some states any showing that a parent is not a genetic parent is enough to destroy that parent’s rights. This assumes that all states will apply the marital presumption to same-sex couples – and even a progressive state like New York is struggling with this issue.
WHAT IF WE DON’T DO THE SECOND-PARENT ADOPTION?
The consequences of not doing the second-parent adoption are potentially devastating for the non-biological parent. If the couple were to break up, or if the legal parent were to die, the non-biological mom may not have a legal right seek custody or visitation of her own child. I have witnessed this happen in families and it is horrible. At the moment (and there is a case before the New York Court of Appeals on this issue right now), a person cannot acquire parental rights by functioning as a parent in the child’s life. Parental rights flow only from genetics or gestation, adoption, and possibly marriage if you find yourself before a sympathetic judge. Many non-biological moms have found themselves completely excluded from their child’s life – and courts have held that New York law does not give them any legal recourse.
MY RESPONSES TO COMMON QUESTIONS
I often get push back from couples who are tell me, “I would never do that to my wife;” or “her family would never do that to me if something happened to me.” My response is that the case books are full of broken families who believed they would never do that to each other. We see the best in our spouses when the relationship is intact, but when things fall apart, people act out of character and can be spiteful. And unscrupulous lawyers may tell one spouse that she does not have to share custody, or that she can deny parentage of the child. The second-parent adoption is an insurance policy and lets you focus on the dissolution of your relationship and not fight your battles through your kids.
Other push back I get is people telling me, “This isn’t fair, straight people don’t have to do this, why should we?” And I agree. It’s not fair and the laws need to change. New York’s parentage laws haven’t changed since the 1950s, and are woefully out of date. Tell your state senator and assemblyman that the New York legislature need to pass the Child-Parent Security Act, which will improve things greatly.
And then people feel that the process is burdensome and invasive. The process requires a little bit of information about a lot of things. Many people are concerned about the home study, but most of my clients report that the home study process was not as invasive as they thought it was going to be. I have referrals for social workers who have gone through this process themselves for their families and they want to make it as painless as possible. We are all in this together to help make your family feel secure, rather than humiliated or illegitimate.